The right and the unspeakable: lawyers silenced

Affiliation auteursAffiliation ok
TitreThe right and the unspeakable: lawyers silenced
Type de publicationJournal Article
Year of Publication2015
AuteursD'Istria FColonna
JournalCAHIERS DE DROIT
Volume56
Pagination287-318
Date PublishedSEP-DEC
Type of ArticleArticle
ISSN0007-974X
Résumé

One of the main arguments used to suggest that jurists' dogmatic activities are not scientific is based on the fact that the activities are not empiric-in other words, dogmatics is not a science because it has no empirical object. Or again, to the extent that dogmatics involves the theorization of legal or praetorian rules, it does not focus on facts and so should be refused any scientific dimension. This gives jurists an uninspiring choice, between silence and empty chatter. Either way, nothing they have to say will be taken seriously from a scientific point of view. This paper argues against this analysis, most radically presented by the approach to realism derived from logical positivism. Instead, it suggests opening up a new approach, in which the rules defined by the doctrine are considered to be facts, or empirical experiences, just like the information captured by the senses. This requires a broadening of the concept of fact, using three conceptual instruments : constraint, tradition and the Saussurian signifier. By creating the epistemological tools needed to consider dogmatics as an empirical science, jurists can be allocated a right to speak that, while remaining their own and making no concessions to outside points of view, meets the modern criteria for scientificity.

DOI10.7202/1034453ar